August 19, 2019

August 16, 2019

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NLRB Finds Lieutenants Guarding Nuclear Power Plants Lack Supervisory Status

It’s very common for employees to hold quasi-supervisory roles in their workplaces and it’s no different in security firms. In the case of the latter, many would think lieutenants overseeing security forces guarding nuclear power plants from terrorist attacks would easily qualify as supervisors. Everyone, that is, except the National Labor Relations Board (NLRB). 

In the NLRB’s February 10, 2015 decision in G4S Government Services, the Board held that even though the work of the lieutenants "involves thwarting or repelling a terrorist attack or other force-based incursion by armed attackers" and the "commands" of the lieutenants "must be obeyed in the event of an attack" the lieutenants were employees on par with those who report to them. The NLRB found the lieutenants do not exercise sufficient independent judgment over decisions regarding directing the employees, assigning or disciplining them. 

The case is another reminder that it can be difficult to accurately classify some employees under the various tests used by the many government agencies reviewing your employee classifications. The tests for a supervisor versus employee or independent contractor versus employee or exempt or not exempt are all different and are extremely fact specific. One trend has been clear over the last several years – the default is to consider someone to be an employee or non-exempt and thereby covered by the various employment laws and regulations. 

One can only imagine what Colonel Jessup in A Few Good Men would think of such a decision from the NLRB and its impact on our national security.

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About this Author

Bradley M. Bakker, Employment, Labor, Attorney, Armstrong Teasdale, Law Firm

Bradley Bakker is an experienced employment and labor litigator whose clients include public and private companies as well as educational institutions. He defends employers in state and federal courts and before the Equal Employment Opportunity Commission and other administrative bodies.

Jeremy M. Brenner, Labor Law Attorney, Armstrong Teasdale Law firm

Jeremy Brenner, a member of Armstrong Teasdale’s Employment & Labor and Non-Compete/Trade Secrets practice groups, combines his experience and education in human resources and law to provide clients with a unique perspective on the challenges they face in the workplace. In addition to providing guidance, he is both a trial attorney and a certified mediator who is trained to assist parties in amicably resolving disputes without resorting to the time and expense of traditional litigation.

Shelley Ericsson, Labor, Employment, Attorney, Armstrong Teasdale, law firm

Shelley Ericsson provides practical, sophisticated advice to complex legal problems unique to the labor and employment arena.

In state and federal courts and before state, federal, and local administrative agencies, Shelley defends employers in matters involving claims of discrimination, harassment, retaliation and wages. With a deep knowledge of employment law policies and an eye on the ever-changing economic reality, she litigates matters such as Title VII, Section 1981, the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Americans with...

Jovita M. Foster, Armstrong Teasdale Law Firm, Labor Law Attorney

Jovita Foster is an accomplished litigator working with small- to medium-sized businesses, public utilities, and Fortune 100 and 500 companies in all facets of employment and labor law.

In state and federal jurisdictions and in front of the Appeals Tribunal, Jovita defends employers and managers in disputes involving claims of discrimination, retaliation, violations of public policy, sexual harassment, wrongful termination, and unemployment appeals. She successfully defends employers and managers in arbitration. Jovita also represents broker-dealers in...